Jennifer Matthew offers a summary of Colin Taylor v Des Quigley and Others, in which a golf club member attempted to sue his fellow members.

Caught up in the flurry of New Year’s Resolutions, you might have resolved to be more active or re-learn a sport you never quite mastered; maybe your first stop might have been to the doorstep of your local golf club. In between digging out your polo shirt and practising your swing, your first thought probably isn’t ‘what if I were to be injured at the club?’

Liability of Members’ Clubs to a Member

Many sports clubs in Scotland are operated as unincorporated associations, and for good reason. Although they are relatively easy and low-cost to set up, they don’t have a legal “personality” separate from their members. They can’t sue or be sued in the name of the club. This absence of separate legal personality can cause a number of difficulties, the most relevant one is that in the absence of a “duty of care” members can’t sue each other for injury arising in the course of membership. This is because there is no distinction between you and the members, and you would essentially be suing yourself. This issue was considered in the recent decision of the Court of Session in Colin Taylor v Des Quigley and Others.

Arguments in Court

Colin Taylor had been a member of Colville Park Golf Club, North Lanarkshire for several years. On 12 June 2011, whilst Mr Taylor was pulling his golf trolley from the hire area to the first tee, he stepped onto a loose manhole cover located on the course, seriously injuring his leg.

Mr Taylor raised an action in the Court of Session against eight members of the Golf Club’s executive board. The action was raised against the board members as individuals in their personal capacity rather than as representatives of the golf club. The action was also raised against a ninth defender, Tata Steel UK Limited, as owners of the land where the incident occurred. Mr Taylor also argued that Tata were vicariously liable for the acts of one board member, who Tata Steel had purportedly employed by appointing him to the Executive Board.

Mr Taylor attempted to establish that in particular circumstances, board members could be held to owe a duty of care to another member. He maintained that the board members had a duty to take reasonable care for the safety of persons at the golf club. In particular, Mr Taylor argued that the board members should have appointed a Health and Safety convenor to undertake risk assessments of the golf course and surrounding areas, to prevent members sustaining injuries. He argued that the board members should have known that failing to carry out regular inspections and maintenance would increase the chances of players being injured on the course.

The board members challenged the action and argued there was no valid legal basis to sue them. As there was no distinction between the members and Mr Taylor, he would be in effect suing himself. Mr Taylor sought to argue that the effect of the club’s Health and Safety manual was to make each member individually liable, independently of their membership.

Outcome

Mr Taylor failed to establish that the board members owed him a duty of care. However, that is not to say that no duty of care in respect of health and safety was owed at all, just not to the club’s members. Such a duty was still owed to third parties or outsiders. Since the board members didn’t owe Mr Taylor a duty of care, it followed that Tata Steel could not be held vicariously liable for the acts of their purported employee as a member.

Members’ clubs should bear in mind the importance of carrying out regular Health and Safety risk assessments and keeping up to date with maintenance and repairs. This will help to minimise the chances of a successful claim being raised against you. It is also important to ensure there is adequate insurance against risks faced by your members, as the defence of a court action can be costly, even on success. Finally, consider your role and responsibilities when accepting a position as an executive board member, and, if you are in any doubt, seek legal advice.